ROLAND A. MOORE and VIRGINIA MOORE v. MARK A. RICHEY and TERESA S. RICHEY

This action was filed by Roland A. Moore and Virginia Moore (“Plaintiffs” or “The Moores”) on March 10, 2008, seeking to establish their title to a parcel of land on Plum Island in Newbury, Massachusetts (the “disputed land”) which is owned of record by Defendants Mark A. Richey and Teresa S. Richey (“Defendants” or “The Richeys”). The land in controversy is a strip of land in an area separating the Moore and Richey properties and is shown on a plan attached to the complaint and this Decision as “Exhibit A.” Plaintiffs claim to have established title to the disputed land under the doctrine of adverse possession by virtue of a fence or fences which they have erected on the property, and also by virtue of “snow fences” and a shed which, they claim, have existed in the disputed area for more than twenty years.

Defendants filed an Answer and Counterclaim on May 9, 2008. Plaintiffs answered the counterclaim on June 2, 2008. A pre-trial conference was held on September 9, 2008, at which time counsel and the Court agreed that a sight visit would be made to the property and that trial would take place in Newburyport in the following December or January. In fact, the sight visit was made on January 26, 2009, and trial began that same day at the Newburyport District Court House. Trial was concluded there on January 27, 2009. The testimony was reported and forty-four exhibits, numbered one through forty-five, were entered into evidence. [Note 1] A “blow-up” of Exhibit 17 was accepted and marked as Chalk A. Post-trial briefs were filed by counsel on June 1, 2009, at which time the case was taken under advisement.

Plum Island is a barrier island located off the northeast coast of Massachusetts, north of Cape Ann. It is eleven miles long, has been shown on maps of New England since as early as the mid-1600s, and has historically been a popular vacation destination for many years. More recently, many year-round homes have been constructed and the population of the island has increased. The island, because of its shape and location, has been divided between four cities and towns: Newburyport, Newbury, Rowley, and Ipswich. Much of the island has been given over to wild life sanctuaries seeking to protect the wildlife, flora, and fauna existing there. More recently, the shoreline has been eroding substantially because of storms and high waves.

The land at issue in the present litigation is located in Newbury. In fact, there are two cases currently pending involving the Moores and the Richeys. The present case, as noted, is a dispute as to the correct location of the boundary line separating the parcels. A second case, Land Court Case No. 07 MISC 361014, is an appeal by the Moores from a decision of the Newbury Zoning Board of Appeals granting the Richeys’ application for a special permit which would allow them to renovate and relocate an existing structure on their property, abutting the Moore property. In the present case, as noted previously, the Moores claim to have acquired title to a portion of the Richey property. They further contend that if they prevail, it will necessarily follow that the special permit was granted erroneously because the Richey property will have decreased in size, resulting in the new construction being too close to the boundary line. This court, in an Order dated October 15, 2008, determined that the boundary dispute ought to be resolved before the zoning matter is addressed.

Based on the facts contained in the parties’ pre-trial memoranda, my observations at the view, the testimony and exhibits admitted into evidence at trial, the parties’ admissions in their post-trial memoranda, and my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find the following facts:

1. Plaintiffs, Roland A. Moore and Virginia Moore, are the owners of the property located at 8 Fordham Way in Newbury. Plaintiffs’ property, purchased by Roland A. Moore in 1951, abuts the property now owned by the Defendants. When he first bought his property, Roland and his friends constructed a camp there and parked their cars on a gravel driveway located to the north of the structure. He later had a more substantial structure erected on the lot. The building now located on the Moore property contains two apartments, one of which they rent to tenants on a seasonal basis. Plaintiffs have resided there year-round since the early 1960s.

2. Roland Moore and Virginia Moore were married in 1958. Roland added his new wife as an owner of the property by deed dated December 21, 1983, and recorded on December 29, 1983, in Book 7304, Page 26 at the Essex (South District) Registry of Deeds. [Note 2]

3. In 1958, due to problems with the septic system of the then-owners of what is now the Richey property, Virginia Moore insisted that a fence be constructed to alleviate some of the odor and sight problems caused by the malfunctioning septic system. In 1960, they hired Daniel Knight, a surveyor who had been recommended to them, and asked him to prepare a survey delineating the boundary line separating the two properties in order that they could construct the fence. The Knight plan has been admitted into evidence as Exhibit 16.

4. The Knight plan was never recorded at the Registry of Deeds. It purports to delineate the boundary line between the two properties and indicates that Mr. Knight set a “5/16 copper pin” in a “4" sq. concrete bound set flush” in the location where the boundary line meets Fordham Way. It also indicates the existence of five inch concrete monuments at the locations where the other ends of the boundary lines meet the Atlantic Ocean, about one-hundred sixty-two feet from Fordham Way.

5. In 1960, the Moores constructed, or caused to be erected, a fence running along the boundary line as shown on the Knight plan, extending from Fordham Way all the way to a point near the ocean. The portion of the fence nearest the street was made of “solid wood” while the portion in the rear of the lot, nearer the ocean, was in the form of what is commonly known as a “snow fence.” [Note 3] The driveway, gravel for some time, was later paved by the Moores.

6. Over the years, the solid wood fence has required repair on several occasions due to bad weather. In particular, the fence is susceptible to rotting, caused by ice and snow, and to winter storms, which deposit sand against the fence, causing it to lean or fall.

7. On those occasions when the solid fence has been removed for repair or replaced, it was usually down for only a week or two at the most. The Moores and several other witnesses testified that the solid wood fence was always returned to the same location from which it had been moved. As to the snow fences, which began about fifty or sixty feet from Fordham Way and extended toward the ocean, Moore and others testified that it was difficult maintaining them because of the weather, particularly drifting sand and winter storms, but that Roland and his friends and relatives did their best to do so until the mid 1990s, when Roland became ill.

8. At some time in the 1970s, the Moores caused a shed to be constructed at a point on the boundary line to the rear of the house and beyond the end of the driveway. When the shed was first constructed, the door opening into it was located on the side facing the ocean. Not long thereafter, that door was sealed and a new door constructed which faced in a southerly direction, away from what is now the Richey property. The reason for the change was that drifting sand was blowing against the shed, making it impossible to enter the shed and access beach chairs and other property stored inside.

9. During this time, fences existed along the boundary line as claimed by the Moores and as shown on a plan prepared for the plaintiffs by Jeffrey S. Hoffman, P.L.S. of Northstar Land Survey Services in 2008 (“the Hoffman plan”). This plan, admitted into evidence as Exhibit 17 and prepared for the Moores because of the present dispute with the Richeys, shows a seven-foot high solid wood fence extending from the street to the rear of the shed. From that point on, the evidence, both testimonial and photographic, indicates that there has been a succession of snow fences extending in various directions. Some extended toward the ocean, in an east-west direction, while others extended in a north-south direction, parallel to the ocean. Moore undoubtedly assisted in the construction of some of these snow fences, but it is also true that other neighbors were involved. More than one witness, many of them residents of Plum Island, testified that snow fences were necessities if homeowners were to stop, or at least delay, erosion of the beaches. These fences were often knocked over by wind and high seas, only to be reconstructed. However, it is clear to this court that the snow fences beyond the shed were intended to save the beach, not to mark boundaries.

10. Defendants Mark A. Richey and Teresa S. Richey, who currently live in the Town of Essex, are the owners of property known as 10 Fordham Way in Newbury. They are the record owners of the land, a portion of which is being claimed by the Moores in this action. Teresa A. Richey purchased the lot from Joseph E. McKenzie and Denise McKenzie in 2007. The Richeys intend to move to Plum Island and make 10 Fordham Way their primary residence after they have renovated and relocated the house currently existing on the lot, if they are allowed to do so.

11. The Richey property is located in the Plum Island Overlay District established under the Newbury Zoning By-law. The Building Inspector denied their request for a building permit which would allow them to renovate the existing single family dwelling on the lot, basing his decision on “lot coverage and set back” issues. An appeal was filed to the Zoning Board of Appeals (“ZBA”), and, on or about October 25, 2007, the ZBA, over the objection of the Moores, voted to issue a finding allowing the renovation and relocation according to the plans submitted by the Richeys. The board found that the proposed structure was not substantially more detrimental to the neighborhood than the existing structure, that the proposed structure “shall sustain” the side setbacks of 10.5 feet, and that the relief would not substantially derogate from the intent of the Plum Island Overlay District Zoning Bylaw. The Moores appealed the ZBA decision to this court by filing Case No. 07 MISC 361014 on November 28, 2007. That case is still pending, awaiting the outcome of this case.

12. The Moores filed the present action on March 10, 2008, seeking to establish title by adverse possession to a portion of the Richey property. The Moores contend that if they are successful in this action, the Richeys’ proposed new home will be too close to the “new” lot-line and will, therefore, not be in accordance with the Newbury set-back and side-line requirements.

Discussion

The deed into the Moores, indeed, the deeds into many of those owning property in this section of Plum Island, including the Richeys, are derived from and based on a plan prepared in 1923 by Rowland H. Barnes and Henry F. Beal (Exhibit 1). Most, if not all, of the lots shown on the plan measure approximately fifty feet by one hundred sixty-two feet. However, it appears that the owners of those lots were not as careful and precise as they might have been in erecting fences and structures, with the result that there are other encroachments in the area. In the present case, evidence indicates that Moore’s fence, or at least a portion of it, encroaches onto land owned by the Richeys. Ironically, but not surprisingly, it appears that the owners of the lot on the other side of the Moore property have a driveway which encroaches into the Moore land. Adverse possession is one way of “correcting” these situations. In this case, plaintiffs seek to establish title to a strip of land approximately six-feet wide and over one hundred-feet long because their fences and shed have encroached on defendants’ land for more than twenty years.

In Massachusetts, the doctrine of adverse possession is codified and defined in General Laws chapter 260, § 21, requiring that “[a]n action for recovery of land shall be commenced, or entry made thereon, only within twenty years after the right of action or of entry first accrued, or within twenty years after the demandant … has been seized or possessed of the premises ….” Thus, if a landowner does not assert his or her rights to the property within twenty years of the commencement of an adverse possession, he or she is barred from challenging another’s claim of title. Murphy v. Commonwealth, 187 Mass. 361 (1905); Luther v. Winnismmet Co., 64 Mass. 171 (1851). To establish title by adverse possession, the claimant must demonstrate that his or her possession of the property was open, adverse, exclusive, and continuous for the statutory period. Totman v. Malloy, 431 Mass. 143 , 145 (2000); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 903 (1993); see Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The occupancy must constitute “such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 490 (1938); Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). “Acts of possession which are ‘few, intermittent and equivocal’ [are insufficient to] constitute adverse possession.” Sea Pines Condominium III Association v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004); Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (quoting Parker v. Parker, 83 Mass. 245 , 247 (1861)).

The parties in this case have broken down the area claimed by plaintiffs into three sections: the area of the driveway next to the Moore house, the area around the shed, and the area beyond the shed extending to the ocean. The court will discuss the issues similarly.

The Driveway.

Roland Moore purchased his property in 1951, and transferred title to himself and his wife in 1983. They have been residing at the property continually since at least 1958, almost all of that time on a full time basis. They caused the land to be surveyed and a solid wood fence erected in 1960 along a portion of the boundary line bordering on the driveway, as shown on the Knight plan. While it is true that the fence has fallen or been taken down a few times during the past forty-eight years, this court is convinced that it was repaired and replaced in the same location. The many photographs introduced into evidence and the testimony of several witnesses who visited the property regularly over the years establishes this fact.

Defendants contend that the fence was not replaced in the same location after being repaired, and that it appeared to them that it “moved a few feet” when being replaced. Some witnesses based their testimony on their observations that the driveway was often in a “patchwork” condition rather than being completely and smoothly paved with asphalt. However, the court notes that some of the neighbors so testifying were either not full time residents or were engaged in businesses which took them away from Plum Island. In addition, I credit Roland Moore’s testimony that the driveway had to be dug up on occasion during the installation of water and sewer pipes, after which he caused the way to be patched up on a piece-meal basis. He later had it paved in its entirety. In any event, I do not credit testimony of defendants’ witnesses that the fence was not placed back in the same location from which it had been removed.

The Moores, their relatives and their guests have been parking vehicles on the driveway for many years. No one else has been permitted to do so or to use the way for access to the beach. Plaintiffs have established title to that area by this open, continuous, exclusive, adverse, and notorious use. “A person claiming title by adverse possession need not personally occupy the land for twenty years. He may rely on the possession of his tenants, whose possession is his own.” Lawrence v. Town of Concord, 439 Mass. 416 (2003) (and cases cited). There was more than adequate evidence and testimony to prove this, and I so find. In addition, Joseph McKenzie and Denise McKenzie, predecessors in title to the Richeys, testified that they always considered the solid fence to be located on the boundary line separating their property from the Moore property. They never laid claim to any land on the Moore side of the fence and never even realized there was an issue with the boundary until a survey was made in 2006 in connection with their up-coming sale to Theresa Richey.

The area around the shed.

At the end of the driveway, to the left-rear of the house as viewed from Fordham Way, the Moores constructed a shed, at least as early as the mid l970s. A section of the solid wood fence either connected to, or at least ended at, this shed. Within a year or so, plaintiffs realized they had made a mistake by having the door providing entrance to the shed face the ocean, with its drifting and blowing sand making it difficult, if not impossible, to gain entrance to it. As a result, they sealed up the ocean-front entrance and constructed an entrance on the south side of the shed. There were many photographs introduced into evidence by the plaintiffs which have been identified and authenticated by them and by their friends and relatives. These exhibits attest to the fact that the shed has been in that location since, at least, the 1970s.

Defendants introduced evidence which, they aver, establishes that plaintiffs’ use of the disputed area was not exclusive or continuous. I disagree. The record indicates clearly that the Moores’ allowed only friends, relatives, and those to whom they gave permission to use the disputed area. The fact that much of that use was seasonal, particularly during the warmer months, is not dispositive. The fact is that the Moores lived on the property full-time, and that seasonal use can be used to establish adverse possession. See Mahoney v. Heebner, 343 Mass. 770 (1961); Keith v. Kennard, 222 Mass. 398 (1916); Lebel v. Nelson, 29 Mass, App. Ct. 300 (1990).

The area between the shed and the ocean.

The issue of whether plaintiffs have acquired title by adverse possession to the portion of the claimed land between the shed and the ocean is much more difficult for two reasons: first, there were and continue to be several snow or sand fences in the area, running in various directions, and erected by both the Moores and their neighbors; and second, it is not certain that plaintiffs’ use of the area was exclusive.

Jeffrey Hoffman, the land surveyor who prepared a plan for the plaintiffs in 2008, testified that he relied in part on the Knight plan, but that he also walked the property. He stated that he went on the beach and found two old posts, apparently remnants of an old fence leading from the rear of the shed toward the ocean. The witness stated that he had no knowledge concerning who may have placed a fence in that location, or when. He further testified that he discovered the two post while “shooting the line,” that is, continuing the line from the street, through the shed, and toward the ocean. He found no other remnants, nor was he able to say who may have occupied or used the property in that area.

There was testimony that the Moores, their tenants and relatives used the beach during the summer months, but, with the exception of the area around the shed, I do not find it persuasive as to whether such use was in the six-foot wide disputed area between the shed and the ocean. I am also not persuaded that any use of that specific area was exclusive, or that it was not permissive. For example, there was testimony that the Moores and the McKenzies and Sutherlands, the predecessors in title to the Richeys, worked together to erect and repair snow fences over the years. Accordingly, I rule that plaintiffs have not established title by adverse possession to the six-foot wide area claimed by them along the northerly boundary of the property, extending from the shed to the ocean.

Conclusion.

On all the evidence, I find and rule that plaintiffs have established title by adverse possession to a strip of land approximately six-feet wide along their northerly boundary, in which is located their driveway, fence, and shed. This strip extends from Fordham Way, seventy (70) feet in an easterly direction, to a point approximately ten feet beyond the shed currently existing on the property. I further find and rule that plaintiffs have not established title by adverse possession to any land easterly from that point.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: October 13, 2009